join (dissenting):
With deference to the en banc majority, I adhere to the original majority opinion and decision reported as Ingraham v. Wright, 5 Cir. 1974, 498 F.2d 248, and make a few additional comments. The district court’s “Findings of Fact” were quoted in the original opinion at 498 F.2d 253, 254, and the facts were more fully detailed at 498 F.2d 254—258. At the close of the plaintiffs’ case the district court dismissed all three counts, holding as to Count Three, the class action, that the plaintiffs had shown no right to relief, and as to Counts One and Two that a jury could not lawfully find that either James Ingraham or Roosevelt Andrews had sustained a deprivation of federal constitutional rights. The en banc court now affirms. On original hearing we reversed and remanded for further proceedings. Reconsidering the law and the undisputed facts, I remain convinced that our original decision is right.
I. Baker v. Owen.
In the present case the panel’s majority opinion and Judge Morgan’s dissenting opinion were entered on July 29, 1974 (498 F.2d 248). Since then another case involving the corporal punishment of a sixth grader, Russell Carl Baker, has been heard by a three-judge District Court of the Middle District of North Carolina on January 13, 1975, opinion entered April 23, 1975, judgment entered June 13, 1975, and on appeal judgment affirmed by the Supreme Court on October 15, 1975. Baker v. Owen, M.D.N.C. 1975, 395 F.Supp. 294, aff’d - U.S.-, 96 S.Ct. 210, 46 L.Ed.2d 137. The Supreme Court did not leave to implication but ordered in express terms that “the judgment is affirmed.” (Emphasis added.) The judgment of the three-judge district court, entered nearly two months after the entry of its opinion, was not included in the report of the opinion. The judgment reads as follows:
“Now, therefore, consistent with the amended opinion it is ORDERED, ADJUDGED, AND DECREED that:
“1. North Carolina General Statute § 115 — 146, on its fact, is declared not to be in violation of the Constitution of the United States.
“2. Defendants, their agents and servants, and their successors, are permanently enjoined in the administration of corporal punishment in the public schools of the State of North Carolina to conform to the minimal due process requirements of the Fourteenth Amendment as follows:
“(a) Except for those acts of misconduct which are so anti-social or disruptive in nature as to shock the conscience, corporal punishment may never be used unless the student was informed beforehand that specific misbehavior could occasion its use, and, subject to this exception, it should never be employed as a first line of punishment for misbehavior. The requirements of an announced possibility of corporal punishment and an attempt to modify behavior by some other means — keeping after school, assigning extra work, or some other punishment — will insure that the child has clear notice that certain behavior subjects him to physical punishment.
“(b) A teacher or principal may punish corporally only in the presence of a second school official (teacher or principal), who must be informed beforehand and in the student’s presence of the reason for the punishment. The student need not be afforded a formal opportunity to present his side to the second official; this requirement is intended only to allow a student to protest, spontaneously, an egregiously arbitrary or contrived application of punishment.
*922“(c) An official who has administered such punishment must provide the child’s parent, upon request, a written explanation of his reasons and the name of the second official who was present.
The above minimal due process requirements are not intended to prevent or dissuade the state from further elaboration upon necessary requirements in order to accomplish fairness in administration.
“3. The parties shall bear their own costs.”
As to paragraph numbered 1 of the judgment, the opinion at 395 F.Supp. 303 shows that the plaintiffs made no claim “that corporal punishment per se violates the eighth amendment prohibition of unusual punishment”; that “His teacher, a female, administered two licks to his buttocks with a wooden drawer divider .,” and that
“In short, this record does not begin to present a picture of punishment comparable to that in Ingraham, supra [5 Cir. 1974, 498 F.2d 248], at 255-59, or in Nelson v. Heyne, 491 F.2d 352 (7th Cir. 1974), which we believe indicate the kinds of beatings that could constitute cruel and unusual punishment if the eighth amendment is indeed applicable.” 395 F.Supp. at 303.
The district court posed, but did not decide the issue of whether the Eighth Amendment applies to the corporal punishment of school children. 395 F.Supp. at 303.
As to paragraph numbered 2 of the judgment, the district court’s opinion made clear the substantive due process constitutional right which made it necessary to inquire as to the type of procedure to be employed:
“The initial inquiry must be whether Russell Carl has a liberty or property interest, greater than de minimis, in freedom from corporal punishment such that the fourteenth amendment requires some procedural safeguards against its arbitrary imposition. Only if such an interest is found must we proceed to an inquiry as to the type of procedure to be employed. See generally Goss v. Lopez, supra, 419 U.S. [565] at 574, 95 S.Ct. 729 [1975]; Board of Regents v. Roth, 408 U.S. 564, 570—71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring).
“We believe that Russell Carl does have an interest, protected by the concept of liberty in the fourteenth amendment, in avoiding corporal punishment. This conclusion is compelled by a conflux of many premises and postulates.
“Having concluded, upon due consideration of all the above factors, that North Carolina school children have a liberty interest, we must decide what procedural safeguards should protect it.” 395 F.Supp. at 301, 302.
Relevant to the present appeal, the Supreme Court in affirming the judgment of the district court held that so long as the force used is reasonable, corporal punishment does not violate the Eighth Amendment. It left undecided the issue of whether the Eighth Amendment applies to the corporal punishment of school children.
Acknowledging my indebtedness to Judge Morgan for calling to my attention that only the plaintiffs appealed to the Supreme Court and that no appeal was taken from paragraph 2 of the judgment, I agree that the Supreme Court’s affirmance of the judgment did not bind this Court as to paragraph 2. Nonetheless, I submit that paragraph 2 was correctly decided by the district court for the reasons well stated in its opinion.
Some further discussion of the several issues seems warranted.
II. Cruel and Unusual Punishment.
The en banc majority holds that the cruel and unusual punishment clause of the Eighth Amendment has no application to corporal punishment administered to public school children by teachers or *923administrators regardless of the circumstances or the severity of the punishment. I agree with the contrary holding of the Eighth Circuit in Bramlet v. Wilson, 1974, 495 F.2d 714, 717, for the reasons stated in footnote 20 to the original opinion, 498 F.2d at 259, 260.
The en banc majority makes brief reference to the legislative history of the Eighth Amendment. That history is sketchy and inconclusive at best. The first ten amendments were proposed to the legislatures of the several states by the First Congress on September 25, 1789, and were ratified December 15, 1791.
In Brown v. Board of Education, 1954, 347 U.S. 483, at 489, 490, 74 S.Ct. 686, 98 L.Ed. 873, the Supreme Court discussed the history of the Fourteenth Amendment with respect to segregated schools as of the time of the adoption of that Amendment in 1868. The rationale of that discussion applies with multiplied intensity to the history of the Eighth Amendment as of 1791 with respect to corporal punishment in the public schools. As the Brown opinion demonstrates, public education was in its infancy in 1868. In 1791 it was almost nonexistent.1 Chief Justice Warren, writing for a unanimous Court in Brown, said:
“In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson [163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256] was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” 347 U.S. at 492-493, 74 S.Ct. at 691.
Similarly, in Trop v. Dulles, 1958, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, with specific reference to the constitutional phrase “cruel and unusual” as used in the Eighth Amendment, Chief Justice Warren said: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
In Nelson v. Heyne, 7 Cir. 1974, 491 F.2d 352, cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146, that expression was quoted and applied by the Seventh Circuit to a “[s]chool, located in Plainfield, Indiana [which] is a medium security state correctional institution for boys twelve to eighteen years of age, an estimated one-third of whom are noncriminal offenders.” 491 F.2d at 353, 354 (emphasis added). The Seventh Circuit held that corporal punishment consisting of beating juveniles with a fraternity paddle, causing painful injuries, was cruel and unusual punishment. While it recognized that the school was both a correctional and an academic institution (491 F.2d at 354), it did not exclude from its holding the “non-criminal offenders.”
It is likely that in 1791 the federal government meted out punishment solely in retribution for crimes. The scope of the Amendment was greatly expanded after it became binding on the states through the Fourteenth Amendment. Louisiana ex rel. Francis v. Resweber, 1947, 329 U.S. 459, 463; Robinson v. California, 1962, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758. The Seventh Circuit in Nelson v. Heyne, supra, aptly called attention that,
“In re Gault, 387 U.S. 1, 15-16, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967), the Court stated:
“ ‘The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. . . . The child was *924to be “treated” and “rehabilitated” and the procedures, from apprehension through institutionalization, were to be “clinical” rather than punitive.’ ”
491 F.2d at 358.
Thus it is not surprising that there should be so little in the history of the Eighth Amendment relating to its intended effect on corporal punishment in the public schools. Today, government has greatly expanded and provides a multitude of social institutions and public services. The administration of punishment is no longer confined to a criminal setting. It is now employed in public schools, see Bramlet v. Wilson, supra; homes for delinquents, see Nelson v. Heyne, supra, Morales v. Turman, E.D. Tex.1974, 383 F.Supp. 53, 70-72, and Collins v. Bensinger, N.D.Ill.1974, 374 F.Supp. 273; mental institutions, see Welsch v. Likins, D.Minn.1974, 373 F.Supp. 487; and even in processing passport applications, see Trop v. Dulles, supra, 356 U.S. at 88, 78 S.Ct. 590. To paraphrase from Chief Justice Warren in Brown, supra, 347 U.S. at 492, 74 S.Ct. 686, in approaching this problem, we cannot turn the clock back to 1791.
The majority’s other objection to applying the cruel and unusual punishment clause of the Eighth Amendment to this case appears to be one of federalism:
“ . . . if the force used by defendant teachers in disciplining plaintiff was as severe as plaintiffs allege, a Florida state court could find defendants civilly and criminally liable for tortious conduct exceeding the level of severity authorized by 232.27 of Fla.Stat.Ann. and by Dade County School Board policy 5144. The basis of such actions is, however, tort and criminal law, not federal constitutional law. We find it neither proper nor necessary to expand the Eighth Amendment beyond its intended and reasonable scope to encompass an action which is essentially based on the commission of a battery.” 525 F.2d 915.
It has been the province and duty of the federal courts since Marbury v. Madison, 1803, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, to interpret the Constitution and protect constitutional rights. The presence of alternative remedies in state courts should not deter federal judges from their primary duty of defending and supporting the Constitution. Cf. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. The claims for relief here involved were brought by plaintiffs under 42 U.S.C. § 1983, which derives from the Civil Rights Act of 1871. In the landmark case construing § 1983, Monroe v. Pape, supra, the complaint alleged, inter alia, that thirteen Chicago police officers broke into the plaintiffs’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping, mattress covers. 365 U.S. at 169, 81 S.Ct. 473. Like the corporal punishment in our present case, these acts were, among other tortious conduct, “essentially based on the commission of a battery.” The possibility of criminal law proceedings and tort claims against these policemen in state court was found to be no answer, as the federal remedy provided by § 1983 is supplementary to any state remedy. Id. at 183, 81 S.Ct. 473. On that score, Monroe v. Pape, supra, was followed by McNeese v. Board of Education, 1963, 373 U.S. 668, 671, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622, and by many decisions of the courts of appeals and of the district courts, some of which are collected in 42 U.S.C. § 1983 n. 500. I cannot escape the conclusion that these school children have a constitutional right to freedom from cruel and unusual punishment when applied under color of state law, and that it is our duty as federal judges to enforce that right.
III. Substantive Due Process.
The district court found that “ 'alternative measures in use range from parent and student conferences, the use of guidance counselors and psychologists, where available, to suspension and ex*925pulsion.’ ” (498 F.2d at 264. See also footnote 32 which follows.) In the original panel majority opinion, we noted that,
“The defendants apparently concede that corporal punishment in Dade County is a relatively serious punishment. In their brief they state that ‘Corporal punishment in the public schools of Dade County, Florida, is a last resort means of discipline as an alternative to suspension or expulsion * * * .’ (Defendants’ Brief, p. 17.)” 498 F.2d at 267.
The administration of cruel and severe corporal punishment can never be justified. The circumstances and severity of the beatings disclosed by the presently undisputed evidence amounted to arbitrary and capricious conduct unrelated to the achievement of any legitimate educational purpose. Such conduct, exercised under color of state law, deprived the plaintiffs of both property and liberty without due process of law.
I submit that the en banc majority errs in the following part of its opinion:
“Having determined that corporal punishment itself and corporal punishment as circumscribed by the guidelines in Policy 5144 is not arbitrary, capricious, or unrelated to legitimate educational goals, we refuse to look at each individual instance of punishment to determine if it has been administered arbitrarily or capriciously. We think it a misuse of our judicial power to determine, for example, whether a teacher has acted arbitrarily in paddling a particular child for certain behavior or whether in a particular instance of misconduct five licks would have been a more appropriate punishment than ten licks. We note again the possibility of a civil or criminal action in state court against a teacher who has excessively punished a child.8
525 F.2d p. 917. That is in effect to hold that corporal punishment more severe than that “circumscribed” by the Florida Statute § 232.27 and by Dade County School Board Policy 5144 is not done under color of state law. Obviously the conduct of public school teachers or administrators purportedly exercised under authority granted by a state statute and school board regulation is not excluded from federal constitutional scrutiny simply because the severity of the beatings exceeded the prescription of the state law. That is implicitly, if not expressly, held in Baker v. Owen, supra. See also Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571, 579, 581, discussed in the original panel opinion at 498 F.2d 261, 262 n. 26. In United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, a criminal action against Louisiana election officials for falsifying election returns, the Supreme Court held that defendants were acting under color of state law when they falsified the returns. These acts, the Court found, were committed “in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election.” 313 U.S. at 325-326, 61 S.Ct. at 1042-1043. The Court further stated that:
“Misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law. [Citations omitted.] Id. at 326, 61 S.Ct. at 1043.
In Monroe v. Pape, supra, this definitional view of the words “under color of” was adopted for the civil rights action provided by 42 U.S.C. § 1983. 365 U.S. at 184, 185, 61 S.Ct. 1031. Clearly, the teachers and administrators who administered the spankings in this case did so under color of state law. The fact that they might have misused the power vested in them by the state to administer corporal punishment by inflicting more blows and blows more severe than prescribed does not alter the basic fact that *926these beatings were performed by officials clothed with state authority.
Monroe v. Pape, supra, in discussing the legislative history of the Civil Rights Act which gave birth to 42 U.S.C. § 1983, commented:
“ . . . the remedy created was not a remedy against it [the Ku Klux Klan] or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law.
$ * * * * *
“There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty.” (Emphasis that of the Court.) 365 U.S. at 175-176, 81 S.Ct. at 478.
Likewise, in the present case, there is no quarrel with the restrictions on the severity of corporal punishment expressed in the Florida Statute 232.27 and those stated in the Board Policy 5144. “It was their lack of enforcement that was the nub of the difficulty.” 365 U.S. at 176, 81 S.Ct. at 478. The district court found that
“ ‘There has been a rather widespread failure to adhere to School Board policy regarding corporal punishment. Teachers have punished students without first consulting with their respective principals. More blows have been administered to students than authorized by the policy.’ ” 498 F.2d at 254.
The original panel properly deemed it “more important to know how corporal punishment is actually administered than to know the relevant rules or regulations.” 498 F.2d at 261. The en banc majority would separate sharply the moderate kind of corporal punishment authorized by the Florida Statute and the Board Policy from the severe beatings administered to the plaintiffs Roosevelt Andrews and James Ingraham and to a few other students.
The original panel recognized the difficulty, or perhaps impossibility, of controlling the severity of corporal punishment (498 F.2d at 261, 262 n. 26). I submit that the arbitrary, excessive and severe corporal punishment disclosed by the plaintiffs’ evidence, thus far undisputed, amounts to a denial of substantive due process of law.
IV. Procedural Due Process.
In the light of the district court’s opinion in Baker v. Owen, supra, it seems clear that the plaintiffs have been denied procedural due process. The circumstances and severity of the beatings disclosed by the plaintiffs’ evidence were such as to require the basic right to a hearing of some kind under either the “severe and grievous” or the “de minim-is” test. The two tests were contrasted in the latest Supreme Court pronouncement on procedural due process, Goss v. Lopez, 1975, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, and the de minimis test was adopted, “that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause.” 419 U.S. at 576, 95 S.Ct. at 737. (citations omitted).
In the present posture of this case, the undisputed evidence discloses much more than a de minimis deprivation of property rights. It shows deprivations of liberty, probability of severe psychological and physical injury, punishment of persons who were protesting their innocence, punishment for no offense whatever, punishment far more severe than warranted by the gravity of the offense, and all without the slightest notice or opportunity for any kind of hearing. Repetition from a few examples should suffice. James Ingraham claimed that he was innocent and refused to be pad-died. Principal Wright administered at least twenty licks,2 while Assistant Principals Deliford and Barnes held James by his arms and legs and placed him strug*927gling face down across a table. “The district court found that James Ingraham ‘received 20 licks with a wooden paddle, which produced a painful and serious hematoma on his buttocks.’ (R. 1561).” 498 F.2d at 256 n. 10. “On October 14, eight days after the paddling, this doctor indicated that James should rest at home ‘for next 72 hours.’ James testified that it was painful even to lie on his back in the days following the paddling, and that he could not sit comfortably for about three weeks (Tr. 149).” 498 F.2d at 256. Was James’ loss of more than 10 days from school any less a deprivation of property because it resulted from a beating instead of a formal suspension?
Roosevelt Andrews’ numerous paddlings were for offenses no more serious than being late or not “dressing out” (498 F.2d at 256). Roosevelt on one occasion insisted that he was innocent and refused to bend over. Barnes pushed him against the urinals and hit him on his arm, back and neck. Roosevelt complained to Principal Wright, but to no avail (498 F.2d 257).
Daniel Lee was struck four or five times on the hand for no offense whatever. His hand was X-rayed and, according to Daniel, a bone in his right hand was found to be fractured. The district judge observed an enlargement of his right knuckle (498 F.2d 258). Other instances of violation of procedural due process are set out in 498 F.2d at 258, 259. The brutal facts of this case should not be swept under the rug. Clearly, according to the presently undisputed evidence, the plaintiffs have been subjected to cruel and unusual punishment. Under color of state law, they have been arbitrarily deprived of both property and liberty. Even more clearly, they have been denied procedural due process.
The precedent to be set by the en banc majority is that school children have no federal constitutional rights which protect them from cruel and severe beatings administered under color of state law, without any kind of hearing, for the slightest offense or for no offense whatsoever. I strongly disagree and respectfully dissent.
. At the time of the American Revolution, schools were predominantly private and denominational. 7 Encyclopedia Britannica, History of Education 991 (1970). The main outlines of the public educational system were not achieved until the middle of the Nineteenth Century. Id. at 992.
“8 Indeed, Policy 5144, as effective during 1970-71, provides in part: ‘The person administering the corporal punishment must realize his own personal liabilities if the student being given corporal punishment is physically injured.’ ”
. Four times the five licks held to constitute cruel and unusual punishment in Nelson v. Heyne, supra, 491 F.2d at 354.